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NAVY | DRB | 2005_Navy | ND0500350
Original file (ND0500350.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-MTSN (SU), USN
Docket No. ND05-00350

Applicant’s Request
The application for discharge review was received on 20041130. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050214. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1.” I respectfully request this change in order to receive my G.I. Bill benefits and all other benefits afforded to veterans. I also believe that the circumstances under which I was discharged was extreme. I was given the choice of remaining in the navy or being discharged. I was never informed that I would not get any of my G.I. benefits. The other party involved in the situation was not punished as severe as I have been.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940621 - 950612  ELS
 950720 - 960220  COG
          Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 960221               Date of Discharge: 980930

 Length of Service (years, months, days):

         Active: 02 07 10
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 79

 Highest Rate: MT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)             Behavior: 1.00 (1)                OTA: 1.67

 Military Decorations: None

 Unit/Campaign/Service Awards: 9MM Sharpshooter, SSBN Deterrent Patrol Pin (2)

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

970410:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award: Forfeiture of $50.00 pay per month for 1 month, reduction to E-1 (suspended for 2 months). No indication of appeal in the record.
980717:  Applicant temporarily decertified from the Personnel Reliability Program due to a poor attitude, inability to deal with authority of senior personnel, disrespect, and communicated threats. Applicant prohibited from performing duties associated with nuclear weapons until a final decision had been made.

980724:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a Warrant Officer, Noncommissioned Officer or Petty Officer, violation of UCMJ Article 134: Communicating a threat.
         Award: Forfeiture of $605.00 pay per month for 2 months, reduction to E-4. No indication of appeal in the record.

980914:  USS NEBRASKA (G) (SSBN 739) notified Applicant of intended recommendation for discharge by reason of misconduct due to the commission of a serious military offense. Applicant notified that if discharge is approved, the least favorable characterization of service possible is general (under honorable conditions).

980914:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
980918:  Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980930 general (under honorable conditions) for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. Separation processing for the commission of a serious offense is warranted when a servicemember has committed an offense under the UCMJ for which a punitive discharge is authorized. Moreover, a general discharge is warranted as the result of such processing for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by unauthorized absence, disrespect towards authority, and the communication of threats. This misconduct resulted in two separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 91, and 134. In the Applicant’s case, the violations of Articles 91 and 134 constituted the serious offense for which he was processed. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that his discharge was inequitable because another servicemember was punished less harshly for similar misconduct. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted. As such, relief is denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .
B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134, communicating a threat, if adjudged at a Special or General Court Martial.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil” .

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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